Brexit vote: What is the withdrawal agreement and is it different from the political declaration?

Prime minister's decision to chop her deal in half – and the potential consequences – explained

Sean O'Grady
Thursday 28 March 2019 20:53 GMT
Brexit: Andrea Leadsom confirms parliament will vote on withdrawal agreement

Strictly speaking, Theresa May’s Brexit deal with the European Union, now once again the focus of attention, comprises two main parts.

The difference between the EU-UK withdrawal agreement and the future trade and other relationships, at present only a draft political declaration, is the difference between a legally binding defined “divorce agreement”, on the one side, and a rather more imprecise declaration of future intentions – a sort of pre-nup that cannot be enforced in a court –on the other side.

So the first, substantive, legally-binding part is the UK-EU Withdrawal Agreement – the “divorce settlement”. This was signed by Ms May at the European Council summit last November, and has been confirmed by all the other EU member states. It settles the rights of UK and EU citizens; the financial settlement of about £39bn; and much else besides.

The trickiest part is related to the Irish border – the “backstop” that potentially ties the UK into the EU customs union indefinitely, and from which the UK cannot unilaterally leave (or could but we leave Northern Ireland “behind” in the customs union). This is the part that has proved hugely problematic.

The second component concerns the UK’s future trade and security relationship with the EU. This is only a political declaration, and has no great legal force. It is useful as a guide, and if the parties are acting in good faith it would lead to quota and tariff-free trade, but none of that is guaranteed.

In the first two “meaningful” votes, the government put both of these components as a package to parliament, in the second case with an added legally forceful letter of reassurance from the EU, signed by the president of the Commission, Jean-Claude Juncker, and by the president of the EU Council, Donald Tusk. It made little difference. Both times the package of documents – treaty, political declaration and letter – were voted down heavily.

This time, the government has exploited a technicality in that the EU only requires the UK to ratify the Withdrawal Agreement now (not the political declaration) in order to achieve a Brexit date of 22 May. Friday 29 March is the last date on which this can be done.

Splitting the deal package in two also helps persuade Speaker Bercow the new motion is substantially different to her previous attention to win approval, and is therefore in order according to House of Commons rules.

The problem for the government is that the Withdrawal Agreement is the document that has within it the backstop poison pill the Democratic Unionists and their Conservative allies find so objectionable. Ms May would need a large number of Labour rebels to counter that force of dissent on her own side, and there seems little chance of that.

The backstop also pre-empts the kind of trade relationship the UK will have with the EU more widely – frictionless as now within the customs union, or a more distant free trade agreement. This linkage effectively means the Withdrawal Agreement is a proxy for the future trade agreement anyway. The two documents, in other words, although separate, are intimately related in reality.

Banksy parliament artwork unveiled at Bristol museum in time for Brexit

Another point is that the political declaration would lack some force for the future, leaving the UK exposed ironically because it refused to agree to its own protections – a truly “blind Brexit”.

If, as seems likely, the vote is lost by the government once again, minds will have to turn to finding a new way forward by the new deadline of 12 April. The indicative votes by the Commons suggest one or two ways forward:

  • A permanent UK-EU customs union, as suggested by veteran MP Ken Clark, which has impressive support;
  • Plus a confirmatory public second referendum on whatever deal (including Ms May’s, but possibly other models) parliament eventually decides to put to the people (the Beckett amendment)

For the future, by the way, remember this: while the “draft agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community”, the divorce agreement’s full official title, can be agreed by EU heads of government plus the EU and UK parliaments, a future as yet unknown UK-EU deal needs many more mandates.

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A future UK-EU trade treaty will require approval by 40-plus national and regional assemblies from Lisbon to Bratislava. Consent cannot be assumed: not so long ago the Walloon Parliament, covering Francophone southern Belgium, vetoed and delayed the EU-Canada trade deal, Ceta. It would be surprising if the Dail Eireann or the Cortes Generales didn’t try to get some last minute concessions on Northern Ireland and Gibraltar.

If the withdrawal agreement is thrown out, there may not even be a new UK-EU trade treaty, or at least not for many years. It is not much of an exaggeration to say that in substance we are not much further ahead than we were on that sunny historic morning in June 2016.

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